America has just celebrated Presidents' Day, a commemoration of the birthdays of two presidents Washington and Lincoln who dominate the landscape of American presidencies. The values of these statesmen  values such as "life, liberty, and law"  constituted the foundation upon which America was founded and from which we grew to greatness. But Washington's and Lincoln's values are under savage attack by Humanist/Reconstructionist judges, and no case reflects that lamentable fact more than does Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

Several of the most critical values of American law and life are torpedoed by the chaotic Casey Court and these radically irrational and dangerous judicial attacks provide more rich material for pro-lifers/Constitutionalists to use as talking points in the 2008 elections and as questions to ask candidates. A superficial glance at this case suggests that the values of Washington and Lincoln won  five of the six abortion regulations of Pennsylvania's laws were upheld by the Court. BUT a closer study of Court's multiple opinions demonstrates that this decision may actually be what law professor Michael Stokes Paulsen called "the worst constitutional decision of all time." Therefore, we continue our "curb the courts" elections strategy (begun in our last Court Watch Briefing, on Roe v. Wade) with the first of a series of probing talking points about Casey.

Talking Points

The court produced one of the most convoluted set of opinions  perhaps THE most convoluted set  in its history. The nine Justices produced five opinions, with four justices voting  and signing opinions  against abortion rights. The plurality opinion so often referred to as a "less-than-a-majority-opinion-but-still-the-closest-to-an-opinon-of-the-Court" is the nonsense flowing from the pens of Justices O'Connor, Kennedy, and Souter. After beginning with the unarguable proposition that "Liberty finds no refuge in a jurisprudence of doubt," the plurality produced  to repeat in slightly different words  the most doubtful mess of factual errors, illogical logic, and historical fiction one can imagine. Life, liberty, and law are all the victims of this mess. Let's look at few of the worst effects of this catastrophic case on life, liberty, and law.

LAW: The Court declared its unswerving devotion to the Roe decision as precedent (meaning, to the Court, prior judicial decisions), but proceeded to gut Roe of its essential core. The Casey Court declared that "We reject the trimester framework [of Roe], which we do not consider to be part of the essential holding of Roe." Yet the Roe Court set forth in the clearest terms possible the trimester system at the end of its opinion (Section XI). The Roe Court there declared "To summarize and to repeat [we create the trimester structure as the basis for determining whether or not a state may regulate abortions, and, if so, to what extent]." Isn't a "summary and repetition" of a court opinion, placed at the end of the opinion, by definition an expression of the essence of that ruling? Apparently not, to Casey's plurality. This trio thus fiercely declares its upholding of precedent while performing semantic surgery to rip out the heart of that precedent.

LAW: The Casey Court, in what appears to be an almost frenzied effort to justify its mess, destroyed centuries of Common Law standards as to why precedents should be over-ruled. The Casey plurality dismisses with a mere flick of its judicial wand the centuries-old understanding that a precedent is to be over-ruled when it is found to be wrong. BUT, declare the Casey trio, "a decision to overrule should rest on some special reasons over and above the belief that a prior case was wrongly decided." . . . We are satisfied that the immediate question is not the soundness of Roe's resolution of the [abortion] issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding of Roe should be reaffirmed" [bald judicial hypocrisy in view of the Court's emasculation of Roe as we have just seen in #2 supra]. If the erroneousness of a precedent is insufficient grounds for its invalidation, what does the Casey court offer in lieu of "wrongness" and "error"?

LAW: The ever-creative Justices crafted four stunningly vague new standards for determining when a precedent might be over-ruled. The four standards are: (1) whether the precedent has proved to be practically "unworkable;" (2) whether there has developed such "reliance" on the precedent that over-turning it would do "significant damage to the stability of society"; (3) whether there have been such substantial changes in legal doctrine since the precedent was set that the legal foundation of the precedent has been seriously undermined; and (4) whether there have been such factual changes relevant to the precedent as to seriously undermine the precedent. The pro-abort Justices, applying what they termed "reasoned judgment," determined that (1) Roe had not proven to be "unworkable"; (2) "reliance" on Roe had grown to the point that its over-ruling would significantly de-stabilize society; (3) and (4) neither legal doctrine nor facts had changed to the degree that Roe has been undermined.

The Casey pro-abortion opinions thus stand for the propositions that the supreme law of the land is precedent (i.e., judicial decision), not the Constitution, and that precedent can be interpreted by today's judges in any way they choose  even to the extent of actually destroying a previous decision (or set of decisions) by re-defining its core.

Questions for Candidates

Embedded in this constitutional and moral morass are numerous questions that can, and should, be asked of candidates in the 2008 elections. Here are some of the most significant questions:

How do you define "precedent"?

What is the relationship between "precedent" and the Constitution?

What is/are the standard(s) for over-ruling precedent?

Can/should Congress do anything about situations in which strong evidence indicates that judges have violated the rule of precedent?

In Casey, five Justices of the Court replaced the rule of law with the rule of the lawless (unrestrained judges) and doomed countless numbers of unborn babies to future slaughter in the abortion factories of America. In the 2008 elections, will we Americans make little or no protest, or will we fight with all our might for the values of Washington and Lincoln, and fight to prevent the massacre of countless numbers of unborn babies doomed to their fate by the curse of Casey?

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